Clerk of Circuit Court

 Wills and Estate Administration/Probate

General Information
In order to probate (put to record) a will and to qualify an executor or administrator of a decedent's estate, you must appear in the Circuit Court Clerk's Office in the County in which the decedent resided at the time of death. Probate matters are normally handled by appointment. Appointments generally last approximately 45 minutes to an hour.

Scheduling a Probate Appointment
If you have access to a fax machine and a will exists, please fax the will and death certificate to the attention of the Circuit Court Clerk's Office's Probate Division at 276-782-4045 Include a cover sheet that contains contact information so that a staff member may contact you as soon as possible after reviewing the will. DO NOT write on the will itself.

If you do not have access to a fax machine and/or if there was no will, please call the Probate Division of the Clerk's Office at 276-782-4084. If a will exists, please have it in hand when contacting the Clerk's Office so that certain legal requirements can be confirmed over the telephone.

Fiduciary Duties
It is important to keep in mind that the personal representative (executor or administrator) of an estate is charged by law with numerous responsibilities. It is the legal obligation of the personal representative
to fully understand and discharge his/her required duties. Further details may be obtained from the Smyth County Circuit Court Clerk and Smyth County's Commissioner of Accounts. Your attorney and accountant can provide assistance as well.

Forms
Many forms relating to estate matters are made available through the web site of the Supreme Court of Virginia at www.courts.state.va.us.

Frequently Asked Questions
Smyth County Circuit Court Clerk provides this information as an aid to the general public in understanding the basic procedures involved in probate and the administration of estates. This guide is not intended to be inclusive, as the laws in Virginia regarding probate and estate administration are complex and subject to change. Furthermore, this information is not intended to take the place of legal counsel provided by an attorney.

•How do I determine where to probate the will or qualify as personal representative? Jurisdiction is determined by the last place of residence prior to death. If the decedent was in a nursing home at the time of death, jurisdiction is determined based on the residence occupied before the decedent became a resident of the nursing home.

•How do I decide whether or not I should probate a will or qualify as Executor or Administrator of an estate ?
There are several reasons why a will should be probated (or recorded). The three basic reasons are:

1.  There may be assets that need to be administered by a personal representative (i.e., assets in the decedent's name alone, not held jointly with a right of survivorship)

2.  The decedent may have owned real estate in Smyth County or elsewhere, either alone or jointly with someone.**

3.  The will, once probated, would become a matter of public record, thereby serving as a formal genealogical link to the decedent's family.

If the decedent died with a will, the personal representative is strongly advised to record the will in the Circuit Court Clerk's Office, even if qualification is not necessary. By recording the will, it becomes a permanent record available for review by all family members as well as potential beneficiaries and creditors. Furthermore, if additional assets are discovered which require the personal representative to qualify, the process of recording the will will have already been accomplished.

**If the decedent died without a will and held only real estate at the time of his/her death, the real estate passes to the heirs at law in accordance with the laws of intestate distribution. Although qualification is not necessary under these circumstances, it is necessary to file a List of Heirs/Real Estate Affidavit (form CC-1612) in order for the Tax Assessor's records to be properly updated and to reflect the intestate transfer of property in the Court's land records.

•What should I do if I need to probate a will and/or qualify as personal representative (Executor/Administrator) of an estate? Call the Circuit Court Clerk's Office and schedule an appointment. If the decedent had a will, have the original will with you when you call to make the appointment. The Clerk or Deputy Clerk with whom you speak will ask you a few questions regarding the execution (signing) of the will and the decedent's wishes regarding qualification of a personal representative.

•How do I estimate the estate value? Include all property (real and personal) that was in the decedent's name alone at the time of his/her death. Do not include property held jointly with a right of survivorship or property payable to a named beneficiary (e.g., life insurance policies with a named beneficiary). Include tangible personal property as well as intangible assets (e.g., stocks, bonds, etc.). Estimate the fair market value of the assets as of the decedent's date of death. DO NOT DEDUCT debts owed, loans, or mortgage amounts. Compute separate totals for personal property and real property.

•What is bond? What is surety? A bond is a written promise that one will faithfully perform his/her duties as Executor or Administrator. The bond is set at an amount greater than the estate value and is payable to the Commonwealth of Virginia. A bond issued on behalf of an estate ensures that the person appointed as Administrator or Executor properly administers the assets of the estate. This, in turn, safeguards the interests of creditors, heirs, beneficiaries and the Commonwealth as their interests relate to the estate. If neither the will nor Virginia law waive surety on a bond, surety will need to be posted on the bond. Surety has the effect of insuring the bond, should it become payable. Most often, surety or security is obtained through a bonding company. The company must have the authority to execute bonds in this Court. A premium proportionate to the value of the estate is paid to the bonding company.

•How do I arrange for surety? If it is determined that surety on a bond is required, a bonding company should be contacted to act as surety. A listing of bonding and/or insurance companies that provide for fiduciary bonds may be found in the local telephone directory.

•What fees, taxes, and costs will I need to pay upon probate or qualification?
State probate tax:  ($.001 x value of probate assets)
Recordation of will:  $16.00 up to 10 pages (including the Clerk's Order - testate only)
Recordation of list of heirs:  $16.00 (testate and intestate)
Transfer fee $1.00/parcel:  (only if real estate involved)
Clerk's fee Sliding scale:  (maximum $30)
Certificate of qualification:  $2.00 each ( one included in base fee)

•What should I bring with me to a probate appointment?

Definitions: (Source: VCCA Probate and Estate Administration Manual )

Executor - The person named in the decedent's will to administer the estate who accepts appointment by qualifying before the Clerk.

Administrator - The person appointed by and qualified before the Clerk to administer the [intestate] decedent's estate.

Trustee - Person holding property in trust. One in whom an estate, interest or power is vested.

Decedent - The deceased person.

Heirs - Persons who would inherit the decedent's estate if the decedent died without a will.

Beneficiary - The person or organization entitled to receive a portion of the estate.

Fiduciary - A person in a position of trust with respect to another's property; a general term used to refer to an executor, administrator or trustee.

Self-Proving - Acknowledgement of the testator and the affidavits of attesting witnesses, made before an officer authorized to administer oaths.

Qualification - Procedure whereby a person is appointed by the Clerk to serve as executor or administrator of a decedent's estate.

Testate - Dying with a will.

Intestate - Dying without a will.

Certificate of Qualification - (Also called Letters of Testamentary) Formal instrument of authority and appointment given to a fiduciary by the proper court, empowering him or her to act in the capacity of a fiduciary.

•Whom should I contact if I have questions or if I need to make an appointment for probate and/or qualification?

John H. Graham, Clerk
Smyth County Circuit Court
109 W. Main St., Room 144
Marion, VA 24354
(276)782-4044

•After qualifying, whom should I contact if I have questions regarding my reporting responsibilities? Whom should I contact when I am ready to close the estate?

Assistant Commissioner
of Accounts
John H. Tate, Jr.
102 W. Main St.
Marion, VA 24354
276-783-7238
(The Commissioner of Accounts is an attorney commissioned by the Circuit Court Judges to oversee the actions of fiduciaries and is responsible for reviewing and approving inventories and accountings.)